tag:www.tuttleandmccloskey.com,2013-03-21:/blog/740312017-11-17T14:48:56ZMovable Type Enterprisetag:www.tuttleandmccloskey.com,2017:/blog//74031.29447752017-11-17T14:49:56Z2017-11-17T14:48:56Z
There is perhaps no other type of legal issue that causes more misinformation than that devoted to what determines a wrongful termination. Many employees incorrectly believe that they have a case when their employers were well within their rights to let them go.

The laws overwhelmingly favor the employers being able to hire and retain those employees that they feel are the best fit to represent their companies. But — and there is always a but — employers may not discharge their employees for illegal reasons under the law.

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Some of the common illegal reasons an employee can be fired include the following:

Employment was terminated as part of sexual harassment

They were fired for reasons that violate California or federal anti-discrimination laws

Their termination violated collective bargaining or other labor laws

They were filed for filing a claim or making a complaint against their employers, e.g., whistleblowers

The firing violated written or verbal employment laws

If you suspect but are not sure that you were wrongfully terminated, it's a good idea to consult with a California employment law attorney who can review the circumstances of your employment and termination. Then, he or she can advise as to whether your case has legal standing to proceed.

If you are about to be fired but are still employed, an attorney can also assist you with negotiating a better severance package, but you need to act fast. It's a good idea to reject first offers and always get offers in writing. Also, in many cases, it may be more strategically advantageous to decline offers to resign in lieu of termination.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.28996592017-11-03T13:19:56Z2017-11-03T13:18:56Z
Sometimes employers take advantage of their workers by misclassifying them as contract workers when they actually are company employees. Additionally, the laws are ambiguous enough that a worker may qualify as an employee under federal laws but still retain his or her status as an independent contractor (IC) under California state laws.

Getting a 1099 tax form automatically means you are an independent contractor. While independent contractors do receive 1099s, you may be classified as such for tax purposes but actually be an employee.

Independent contractors are ineligible for unemployment insurance (UI). Not necessarily. There can be cases where injured workers do qualify for UI even if certain business entities consider them to be ICs.

You got paid "under the table," so you aren't an employee. Being on the payroll is not what determines your employment status, That's determined by the scope of your work in relation to the legal definition of employment. You should be aware that you will be responsible for all income tax owed on your wages, however.

You started as an IC, so your status shall remain that. If your employment relationship with a company changes over time, so may your status.

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The biggest mistake that workers can make is to believe that it doesn't matter which way they are classified. It can matter a great deal to both workers and companies. For instance, businesses that follow the letter of the law are at an unfair disadvantage competing against companies that can shred costs by only hiring ICs.

Likewise, workers misclassified as ICs when they are actually employees miss out on all protections and benefits to which they would otherwise be eligible.

If you believe that your employer deliberately misclassified your employment status to deny you protection, wages or benefits, you may need to seek a legal remedy through the California courts.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.28438792017-10-20T15:30:27Z2017-10-20T15:29:27Z
While the scandal involving Hollywood mogul Harvey Weinstein dominates media headlines, for many victims of sexual harassment in the workplace, it's just another day in the office.

That such egregious behaviors are allowed to go unreported is possible because of the shame and fear of the victims and the network that protects these predatory industry leaders.

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Why are some industries seemingly plagued by these lewd predators and others escape seemingly unscathed?

On-the-job sexual harassment is not specific to certain fields, although male-dominated industries like construction and the building trades report higher levels of the aberrant behaviors, says the vice president and general counsel for the National Women's Law Center.

But the service industry is also plagued by higher than average incidents of employee harassment. The industry is buoyed by the approval of customers, and this can affect the way managers interact with their subordinates.

It seems that any industries where there is a great disparity of power between the employees and their supervisors are prone to allegations of harassment. Women working for low wages cleaning hotel rooms or picking crops on a farm are especially vulnerable to abuse from higher-ups because they lack bargaining power to fight their ill-treatment.

According to the federal Equal Employment Opportunity Commission (EEOC), almost a third of complaints from a single year — roughly 30,000 — included harassment allegations. However, the commission concedes that its numbers are too low to accurately reflect the scope of the problem. In fact, it's estimated that three-quarters of all workplace harassment allegations never get reported at all.

Last year, the EEOC released results from their comprehensive study of harassment in the American workplace. The results indicate that approximately 25 percent to 85 percent of females workers report at least one incident of sexual harassment on the job.

Work sites that are staffed by union members see fewer incidents of sexual harassment. This may be tied to the higher wages union members earn as well as the resources dedicated to protecting them from these hostile environments.

Retaliation for reporting

Perhaps the most worrisome of all is not that the harassment occurred but that three-quarters of the victims who reported these incidents experienced some form of retaliation for speaking out about the abuse they suffered.

A California attorney who handles sexual harassment cases is one source of guidance in these circumstances.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.27926472017-10-06T09:30:49Z2017-10-06T09:29:49Z
This week, Attorney General Sessions issued a directive to prosecutors for the federal government. As such, the AG stated that "in all pending and future matters,'' the position of the Justice Dept. will be that transgender men and women are not protected from workplace discrimination by current federal civil rights laws.

According to the memo Sessions sent to all of the U.S. Attorneys' offices on Oct. 4, the attorney general interpreted the Civil Rights Act of 1964's Title VII to prohibit discrimination solely because of workers' biological sexes, and excludes protection for gender identities.

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Sessions' directive reverses the policy that former President Obama issued almost three years ago. In 2014, his predecessor, AG Holder, offered guidance on that matter. In Holder's opinion, the civil rights law's "most straightforward reading" protected transgender workers from discrimination.

The director of the LGBT & HIV Project for the American Civil Liberties Union (ACLU) condemned the Justice Dept.'s action as being "an explicit agenda" that undermines civil rights of members of vulnerable groups. He stated that this Administration's Justice Department "has been cruelly consistent in its hostility towards the LGBT community."

This new policy is disheartening for California workers for a couple of different reasons. The first is that it obviously sets transgendered workers back in their fight for equal rights on the job. But there is a second, more insidious, effect the policy may have on workplaces all across America in both the public and private sectors.

American industries often take their cues from the federal government when it comes to setting sweeping policies that affect their work forces. Sessions' memo could have a chilling effect on transgender employees if the companies that employ them align more with this conservative Administration when setting company policies.

If you feel that you experienced discrimination on the job, you may be able to seek civil redress through the California courts.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.27771952017-09-22T12:23:35Z2017-09-22T12:22:35Z
With wearable health technologies evolving rapidly, perhaps it's only a matter of time until employees start receiving directives from management to start using health tracking devices both on and off the job.

But where is the line between an employee's free time and the company clock? Can companies' wellness programs go too far?

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It appears as if they may if they imply that participation in the wearable health tracker programs are anything more than voluntary and not a condition of continued employment.

Workers have a right to privacy concerning their health, with medical information protected under the federal Health Insurance Portability and Accountability Act (HIPPA). Likewise, companies can offer their workers incentives to get healthier to reduce absenteeism, lower health care costs and improve employee productivity on the job.

Even if third parties, i.e. employee benefits managers, are the ones controlling the collected data and personal health statistics of the employees, that person still is on the company payroll. Workers may suspect that their information could get leaked to managers or otherwise be used to their detriment.

Implementing wearable health trackers for large and small businesses is a major undertaking that should be only one part of a 100 percent voluntary wellness program. But if workers refuse to participate, could this be used against them in subtle ways?

Potentially, yes, although that would be a violation of the employees' rights. However, proving that refusing to use the wearables led to negative personnel actions could be difficult.

Below are some fairly intrusive ways that companies can continuously monitor their employees through the use of wearable health trackers.

Monitoring workers' alertnesslevels. When employees use wearables, companies can track both their physical and mental fatigue and keep workers' safer by alerting them to dangers. But wearables may also draw attention to hungover workers or those suffering from side effects of medical conditions.

Tracking employee whereabouts, movement and activities. Ostensibly to alert workers when they need a break, wearables also offer companies blueprints of employee activity levels at any point in their shifts. Do you really want to reveal how long each bathroom break takes?

Correcting employees' posture. Making it sound like a benefit doesn't disguise that chronic slouchers could get misidentified as depressed or disengaged workers.

Were your rights violated by workplace policies involving wearable health trackers? You may have a legitimate case for a lawsuit.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.27560182017-09-08T12:16:22Z2017-09-08T12:15:23Z
Employers can use various guises to pay their workers less than what is legally owed them, or to deny them the benefits to which they would otherwise be entitled to receive. One way this is done is through misclassification of a worker's status.

Below are some common myths about worker misclassification it's good to be aware of.

It doesn't matter whether I'm classified as an employee or an independent contractor.

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As it turns out, it could matter a great deal. Those who get misclassified as independent contractors may have benefits denied, like unemployment insurance (UI) and workers' compensation for injuries suffered at work. They could also lose their right to medical and family leave, protection from discrimination and retaliation.

Once I'm classified as an independent contractor under a law, I am automatically considered to be an independent contractor under all laws.

Not necessarily, as legitimate independent contractors according to one law might still be considered employees under additional laws.

Because my boss gave me a 1099 tax form, that identifies me as an independent contractor.

Simply because you were given a 1099 tax document doesn't classify you as an independent contractor. This is a murky and complicated distinction that many workers may not fully grasp. However, under the Fair Labor Standards Act (FLSA), if your job leaves you economically dependent on the company, you likely have employee status.

Alternatively, if your economic role is that of a business person working for yourself, your classification may indeed be as an independent contractor. Under the terms of the FLSA, your status may be an employee even though the Internal Revenue Service (IRS) considers you to be an independent contractor.

As you can imagine, debunking these myths may require professional legal guidance from a California employment law attorney.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.27277542017-08-25T08:57:35Z2017-08-25T08:56:35Z
Ellen Pao knows a thing or two about discrimination in the Silicon Valley tech industry. She experienced it firsthand and sought justice through the California civil courts. Then she wrote a book to tell the world about the way women who work in a typically male-dominated industry are systemically treated.

Pao spent six years working for Kleiner Perkins Caufield & Byers in the capacity of a managing partner's chief of staff and as a junior partner. She claims her former company was viewed as "one of the three most powerful venture-capital firms in the world."

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The competitive atmosphere of the male-dominated industry was in full force. Pao was sexually harassed by a colleague who was later promoted and responsible for giving her a series of undeservedly negative performance evaluations. She also found that her progress at the VC firm was stymied, her projects poached and she was repeatedly passed over for promotions.

Eventually, the negatives outweighed any positive reasons to remain working for a company where she was targeted for failure. Still, she gave the firm an opportunity to act on the obviously toxic work environment. In her 2012 email to the firm's managing partners, she laid out her case for "substantive changes" to be made to protect her from the ongoing ostracism of her colleagues and management. Barring that, she asked for a golden parachute that was as valuable as the one given to her harasser — approximately $10 million.

Pao's request was denied. She sued and lost. Her reputation, work ethic and even the status of her marriage was dragged through the mud and put under a glaring microscopic lens.

The eight-figure settlement she didn't get would have been coupled with a restrictive non-disparagement contract. Instead, she shared her story in her book and co-founded a nonprofit to give other women a path to success in the tech industry.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.27118982017-08-11T13:10:58Z2017-08-11T13:09:58Z
By now, almost everyone has heard about the engineer for Google who got fired earlier this week because of a reported violation of the code of conduct for the company. His dismissal was related to the release of an allegedly sexist memo the employee wrote about diversity, which read in part, "We need to stop assuming that gender gaps imply sexism."

On the website for the National Labor Relations Board, it indicates that the fired engineer filed a complaint under the category of "Coercive Statements (Threats, Promises of Benefits, etc.)" with labor officials for the government.

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As the filing is still unavailable for access online, the full nature of the complaint remains murky.

Prior to its filing, the engineer told media outlets of his plans to file a complaint with the NLRB over allegations that managers for Google attempted to silence him.

In a screed that ran 10 pages and went viral within the span of a couple of days, he accused his former employer of causing conservative employees to become alienated. He also equated the lack of gender diversity at the company with biological disparities between women and men.

The memo and its repercussions is another blemish to the reputation of Silicon Valley companies over their treatment of their female employees. Google is also at sword's point with the Department of Labor. The agency alleges that the tech giant engages in "systemic compensation disparities" between male and female employees.

Any form of workplace discrimination needs to be brought into the light and addressed. If you believe that you have experienced discrimination in the workplace, you may want to seek out legal advice to understand your options going forward.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.26956892017-07-28T17:28:32Z2017-07-28T17:27:32Z
Under the laws of California, employers cannot discriminate against or harass workers. However, that doesn't mean that it still doesn't occur -- only that workers have recourse to these prohibited acts.

What specific actions and behaviors are prohibited?

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The Department of Fair Employment and Housing (DFEH) bans discrimination for the following, which may be an employee's perceived but not actual:

Color

Age (older than 40)

Ancestry

Disability status, whether it be mental or physical, and which also includes HIV diagnoses and persons living with AIDS

Gender identity and expression

Genetic data

Marital status

Medical conditions that include a cancer history and genetic characteristics

Religion, encompassing grooming standards and religious clothing

Race

Veteran or military status

Sex and gender, also as related to breastfeeding, childbirth, pregnancy and related conditions

National origin, and possession of license to drive for those who can't prove they are legally allowed to be in the country

Sexual orientation

These protections are extended not just to employees, but to job applicants, independent contractors and people working without pay, such as interns and volunteers. In fact, companies must take every reasonable step to prevent these individuals from being harassed while carrying out their duties.

The law goes even further and requires employers to offer information to all employees about these illegal discriminatory acts, their nature and which legal remedies apply to sexual harassment.

Companies can design their own publications as long as they meet all state standards and codes. If they prefer, employers can offer workers the publications provided by the DFEH.

Companies employing at least 50 workers, as well as public entities, must provide prevention training for supervisors regarding abusive behavior and sexual harassment in the workplace.

The law covers additional areas too numerous to detail in a single post. If you suspect that you have been discriminated against, it's prudent to understand all of your rights under the law.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.26770252017-07-14T17:22:38Z2017-07-14T17:21:38Z
Sexual harassment comes in many forms, and if you think sexual harassment is rare -- or less common -- in the modern world, you're mistaken. In fact, you would be hard-pressed to talk with one California worker who hasn't experienced or witnessed this kind of abuse on the job.

Aside from its prevalence, perhaps the most unfortunate thing about sexual harassment is the fact that people who are victimized by the abuse tend to stay quiet. Men and women who find themselves subjected to demeaning sexual banter, comments about their body or an onslaught of sexual offers often let the abuse continue, thinking that if they speak up, they will suffer employment setbacks as a result -- or worse, lose their job.

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Here are three types of sexual harassment that you may have experienced:

Unwanted touching: There is no reason why any coworker or superior should touch you on the job. If someone comes up behind you and starts to rub your shoulders or if someone touches your body in any way shape or form, and you did not invite or give permission, this person is certainly out of line.

Quid pro quo offers: Quid pro quo sexual harassment refers to a request that you do something -- it might be to go out on a date for drinks, or it might be a sexual favor -- in exchange for something. You might be offered a raise, a promotion or you might be told that you can keep your job if you satisfy the request. This is completely unlawful.

These are just two types of sexual harassment, but they are common throughout California workplaces. Tuttle & Mccloskey is doing its part to eliminate this kind of behavior from California jobs. If you've suffered from this kind of abuse, we can help you make it stop.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.26594832017-06-30T14:31:35Z2017-06-30T14:30:35Z
Latino workers are often targeted for violations of wage laws, a poll conducted last month by Latino Decisions and the National Council of La Raza (NCLR) revealed.

According to the poll measuring discontent in the Latino workforce, of those workers who had pay disputes with their employers, 12 percent reported the matters were never successfully resolved.

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The rates of unresolved wage disputes were highest for those workers earning the lowest wages, as 15 percent reported that they never got paid all the money that was owed to them.

The same held true for 10 percent of the Latino workers whose wages placed them at or above the median wage bracket.

The Principal of Latino Decisions described the workers' frustrations succinctly.

"Imagine if you took a job and you were told 40 [percent] of the time . . . there might be a problem with your pay. It might be late, it might bounce, it might not be complete."

The NCLR's vice president of the Office of Research, Advocacy, and Legislation shared his concerns over the Trump administration's proposed $2.5 billion in cuts to the Department of Labor (DOL). If put into place, these cuts could decimate vital protections and workplace training programs on which Latino workers depend to keep them safe on the job.

He noted also that Latinos belong to the biggest and fastest-growing sector of employees in the nation, meaning they would bear the brunt of the budget cuts.

In addition to being subject to egregious wage violations, Latinos also are challenged by a dearth of training opportunities. Almost a quarter of Latino workers polled had not been trained or gone through orientation before being assigned tasks on their jobs.

Again, lowest-wage earners received the least training, at 28 percent. One out of 10 workers stated that they experienced delays in payments, and 12 percent claimed not to have been paid what was owed to them.

Voicing concerns to management over unpaid wages or other violations is not always an option for Latino workers. They may not be fluent enough in English to communicate their concerns or worry that they or their family members could be targeted for deportation if they complain.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.26404082017-06-16T09:35:43Z2017-06-16T09:34:43Z
Uber is clearly having some serious growing pains, as evidenced by numerous media reports this week. The beleaguered company is reeling from allegations of sexual harassment and the announcement that its co-founder and chief executive officer (CEO), Travis Kalaninck, will be taking "an indefinite leave of absence."

Former Attorney General Eric Holder offered 13 pages of recommendations on ways of repairing the company's dysfunctional management style. The company grew exponentially under an almost exclusively male-dominated hierarchy but failed to develop basic protocols that dealt with bullying, sexual harassment and other egregious acts.

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According to the document released this week from Covington & Burling LLP, Uber failed to establish policies to protect company employees, had a permissive attitude toward employee misconduct and had little supervision from its board.

In an odd coincidence, one board member resigned just this week after a meeting in which he offered an "inappropriate remark" about females while explaining Holder's recommendations to the company's employees.

The board member opined that if women were added to Uber's board, "there likely would be more talking," as noted in a recording that Yahoo obtained. He later resigned and referred to his own comment as "careless and inappropriate."

Holder became involved in the investigation after a former female engineer posted blog entries this year that described the ongoing harassment she experienced in the year she worked for Uber. According to the engineer, on her first day at work, she got propositioned by her supervisor. After reporting him to human resources, she was told he would be lectured, but that nothing further would be done since he was considered to be a "high performer," she noted in one blog entry.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.26249822017-06-02T15:00:46Z2017-06-02T14:59:46Z
A bipartisan bill before President Trump awaits his signature to become law. It seeks to clarify whistleblower protections under the law that shield employees of the federal government who disobey their superiors' directives when they violate regulations or are otherwise illegal.

Known as the "Follow the Rules Act." H.R. 657 was co-sponsoreded by Reps. Gerry Connolly, D-Va. and Sean Duffy, R-Wis. Its passage mitigates the perceived misinterpretation by the Appeals Court for the Federal Circuit.

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The specific case involved was Rainey v. MSPB and dealt with the director of the State Department African Affairs program, Timothy Rainey. He was the recipient of negative performance reviews and then removed from duty because he allegedly wouldn't compel a contractor to re-hire a subcontractor who was fired previously.

Rainey's case went first to the Office of Special Counsel, as Rainey claimed the Federal Acquisition Regulation kept him from obeying the order from his boss. When that was unsuccessful, Rainey then approached the Merit Systems Protection Board. He cited the "right to disobey" as protected by the Whistleblower Protection Act of 1989.

However, both the ruling from the appeals court and the MSPB restricted his rights, claiming the FAR is not a law but a regulation.

Duffy's 2016 bill sought to clarify matters by broadening "the prohibition against a person taking, failing to take, or threatening to take or fail to take a personnel action against any employee or applicant for employment for refusing to obey an order that would require the individual to violate a law to personnel actions against such an individual for refusing to obey an order that would violate a rule or regulation."

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.26024842017-05-19T12:35:45Z2017-05-19T12:34:45Z
Compared to many others around the country, California has long been a state that enforced wage laws that protected its workers. For example, the California Equal Pay Act prohibits employers from paying lower wages to workers of one gender than the workers of the opposite gender who do the same jobs.

About 18 months ago, Gov. Jerry Brown signed into law SB 358, the California Fair Pay Act, which further added worker protections, such as:

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-- Obligating that employees be paid equally if they do essentially the same tasks if taken into account their effort, responsibility and skill.

-- Nullifying requirements for the compared workers to be employed at the same facility.

-- Making it harder for companies to successfully use the defense of "bona fide factor other than sex."

-- Making sure that the legitimate factors that companies rely on to justify wage discrepancies are reasonably applied and apply to the entire pay differential.

Also, workers are no longer prohibited from discussing their wages among themselves, which in the past could be construed as having a chilling effect on wage equality for workers.

This does not mean that employers are without defenses to Equal Pay Act claims, however. They may still be able to prove the wage difference for essentially similar work is due to:

-- Merit

-- Seniority

-- Systems measuring worker productivity

-- "Bona fide factor[s] other than sex"

Employers also have to prove that the above factors were reasonably applied and responsible for all of the wage differential.

"Bona fide factor[s] other than sex" have to be related to the job and also be consistent with necessities for the business, such as special training, education or experience.

Despite these protections from the state law, some employers still attempt to take advantage of their workers and cheat them out of their rightful wages. If you have been denied overtime, or paid less than a co-worker of a different gender at the same position, you may prevail by filing an Equal Pay Act claim.

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tag:www.tuttleandmccloskey.com,2017:/blog//74031.25845202017-05-05T01:54:05Z2017-05-05T01:53:05Z
This month, Republicans in the House of Representatives brought up a proposed bill that would permit corporations to stop paying workers overtime by instead substituting compensatory time.

House Democrats oppose the bill, claiming that worker protections would be eroded. Representative Anthony Brown, a Democrat from Maryland, addressed the House in a floor speech where he said that the "bill would ensure workers have less time, less flexibility, and less money."

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The House Committee on Education and the Workforce approved the bill last month with a vote split on party lines.

With both the House and the Senate as well as the White House, under Republican control, the proposal is in the best position for being signed into law since its first introduction in 1996. However, the Senate could still prove to be its stumbling block.

The slim margin that the Republicans hold over their Democratic colleagues means that they would still need to win over eight Democrats to override the resulting Democratic filibuster.

As the law stands today, those workers in the private sector who are otherwise eligible must be paid overtime wages of time-and-a-half for the hours worked per week after 40. The Republican bill proposes that overtime could instead be compensated by 90 minutes time off for every extra work hour. Employees could then "bank" this comp time as paid time away from work in the future.

The labor-friendly founder of the Family Values at Work coalition sees the bill as "play[ing] into the hands of bad actors who are already engaging in wage theft -- it gives them another tool,"

If you have been denied overtime pay for the hours that you worked, a California attorney can review your legal options with you.